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Publications

Since 1994, the Northwest Water Law & Policy Project has sponsored over 30 publications, written by some of the region’s experts in water law issues.

Selected studies, indicated below by a hypertext link, are available in PDF format.

All studies are available in print form from the Northwest Water Law & Policy Project
To order a study send request to

Northwest Water Law & Policy Project,
10015 SW Terwilliger Blvd.
Portland, OR 97219-7799
or by phone: (503)768-6761
or by email: water@lclark.edu

All studies are $10 (except PO95-7 which is $25).
Upon your request we will send you the publication along with an invoice, payable upon receipt.

NOTE: If you have errors downloading…
Due to an error in the interface between Microsoft Internet Explorer and Adobe Acrobat Reader, you may experience difficulty in downloading PDF files from this website using Internet Explorer. The problem only occurs if Acrobat is called as a plug-in (where the Acrobat program runs from within the Explorer Browser instead of as an external process). There are several workarounds:
1)Use Netscape to download the PDF files.
2)Run Acrobat as an external process (in Acrobat Reader select File/Preferences/General and de-select “Web Browser Integration”).
3)Upgrade Internet Explorer (Reportedly, newer versions of both 4.X and 5.X correct the problem)
4)Contact the Water Project office at www.lclark.edu to have a study or a PDF file sent directly to you.

Policy Papers 2002

 

Laws Governing Recreational Access to Waters of the Columbia Basin: A Survey and Analysis
by Stephen D. Osborne, Jennifer Randle & Michael Gambrell
PO02-1
Each Northwest state has its own statutory scheme and common law tradition governing recreational access to waters, including widely varying statutes limiting liability of landowners who open their lands for recreational use. This article presents a systematic overview of this welter of federal and state laws, including general principles of ownership and use rights as well as a state-by-state survey of recreational access laws in Idaho, Oregon, Montana and Washington. We point out current trends and areas of uncertainty in the law, and suggest ways in which it can be clarified to prevent conflict between recreational users and landowners.

Policy Papers 2001

The Decline of the Hydropower Czar and the Rise of Agency Pluralism in Hydroelectric Licensing
by Michael C. Blumm & Viki A. Nadol
PO01-3
Tracing the grudging evolution of hydroelectric licensing from the exclusive province of the Federal Energy Regulatory Commission to a multi-agency process more responsive to environmental and habitat concerns, this study argues that the new agency pluralism will benefit society through removal of inefficient dams. This work appeared in different form in 26 Colum. J. Envtl. L. 81 (2001).

Could a River Run Through It? A Review of the Yakima River Basin Water Enhancement Project
by Steve Wise
PO01-2
An evaluation of, and recommendations for, a federal water acquisition and conservation program whose promise has so far been unfulfilled.

Reversing the Winters Doctrine?: Denying Reserved Water Rights for Idaho Wilderness and its Implications
by Michael C. Blumm
PO01-1
Analysis and critique of recent Idaho Supreme Court case narrowly construing the Wilderness Act of 1964 so as to deny federal reserved water rights to wilderness areas in the state.
This work will appear in 73 U. of Colo. L. Rev. __ (forthcoming 2001).

Policy Papers 2000

Salmon and the Endangered Species Act: The NMFS Perspective
by Will Stelle, Jr.
PO00-1
NMFS regional director lays out the agency’s views on the salmon conservation efforts for the West Coast and the Columbia River Basin.

Judicial Termination of Treaty Water Rights: The Snake River Case
by Michael C. Blumm and three co-authors
PO00-2
Calls into question the decision by the Snake River Basin Adjudication court in Idaho denying water right claims by the Nez Perce Tribe for instream flows to protect treaty fishing rights.
This work appeared originally in 36 Idaho Law Rev. 449 (2000).

San Carlos Apache Tribe v. Superior Court: The Defeat of Legislative Favoritism in Water Right Allocations
by Sean O’Day
PO00-3
Evaluates an Arizona Supreme Court decision striking down an attempt by the state legislature to override the public trust doctrine in favor of prior appropriation water right holders and remarks that the case should trigger a trend by state courts to recognize reserved rights and public trust obligations as water interests that legislatures are not free to destroy.

The Wild and Scenic Rivers Act and the Oregon Trilogy
by Charlton Bonham
PO00-4
Analyzes three cases from the Federal District Court of Oregon that for the first time require that rivers designated under the Wild and Scenic Rivers Act be managed for “outstandingly remarkable values” for which they received protection, even if it means an end to traditional river uses such as grazing.
This work appeared originally in 21 Pub. Land & Resources L. Rev. 109 (2000).

Addressing Water Pollution from Livestock Grazing After ONDA v. Dombeck: Legal Strategies Under the Clean Water Act
by Peter Lacy
PO00-5
Analyzes a recent federal court case and its impact upon efforts to control effects on water quality from grazing.
This work appeared originally in 30 Envt’l L. 617 (2000).

Policy Papers 1999

Overhaul or Maintenance: A Review of Existing and Proposed Governance Institutions in the Columbia River Basin and Estuary Volume 1
Overhaul or Maintenance: A Review of Existing and Proposed Governance Institutions in the Columbia River Basin and Estuary Volume 2
by Angus Duncan, Janet C. Neuman, and Brett M. Swift
PO99-1
An analysis of the legislative and policy mandates (current and proposed) which guide management in the Lower Columbia River Estuary and provide the framework within which the Program’s plan will be implemented.

Integrating the Planning Mandates of the Clean Water Act, the Coastal Zone Act Reauthorization Amendments of 1990, and the Endangered Species Act: Toward a Comprehensive Approach to Watershed Management Planning
by Kelly Nolan
PO99-2
Provides an outline of the planning requirements of the Clean Water Act, the Endangered Species Act, and the Coastal Zone Act Reauthorization Amendments of 1990 to be used by groups developing watershed management plans.

The Failure of Watershed Analysis Under the Northwest Forest Plan: A Case Study of the Gifford Pinchot National Forest
by Brent Foster
PO99-3
Asserts that the Northwest Forest Plan has not significantly benefitted aquatic resources in the Gifford Pinchot National Forest and the importance of this fact because of the questions raised as to the Forest Plan’s likelihood of success.
This work appeared originally in 5 Hastings W-NW J. Envt’l L. & Policy 337 (1999).

Aquatic Invasive Species in the Coastal West: An Analysis of State Regulation within a Federal Framework
by Viki Nadol*
PO99-4
Examines aquatic invasive species (AIS) in the American coastal West: specifically the article addresses the impacts of AIS in California. Oregon, Washington, and Alaska. It then examines the legal responses that each of these states has crafted to reduce AIS introduction and to eradicate already established AIS populations.
This work appeared originally in 29 Envt’l L. 339 (1999).

Aquifer Storage and Recovery in the Columbia Basin: The Need for Legislative Action
by Peter G. Scott
PO99-5
Explores the potential and risks of developing new water supply by capturing peak flows in aquifer storage. The study examines how the aquifer storage and recovery scheme conflicts with much of the existing legal structure and warns that without statutorily addressing the potential conflicts and policy choices before widespread development begins widespread litigation and environmental damages are likely to result.
This work appeared originally in 21 Pub. Land & Resources L. Rev. 35 (2000).

Pacific Salmon Sanctuaries: The Hope and Challenge of a New Millennium
by Shauna M. Widden and James Lichatowich
PO99-6
Proposes the framework for a sanctuary system offering protection for anadramous fish in all stages of their lifecycle. The study examines existing protection schemes to offer as models for a salmon sanctuary as well as the legal and policy tools available to a manager of a salmon sanctuary.

EPA’s Approach to Endangered Species Protection in State Clean Water Act Programs
by Elizabeth Rosan
PO99-7
Examines the approach developed by the Environmental Protection Agency to incorporate endangered species protection under the Clean Water Act.
This work appeared originally in 30 Envt’l L. 447 (2000).

Policy Papers 1998

Six-Packs for Subdivisions: The Cumulative Impacts of Washington’s Domestic Well Exemption
by Robert N. Caldwell
PO98-1
Explores the cumulative effects of exempt well proliferation in Washington on resource management, public health, and instream flows and demonstrates that those effects are far from de minimis.
This work appeared originally in 28 Envt’l L. 1099 (1998).

Partial Forfeiture of Water Rights: Oregon Compromises Traditional Principles of Western Water Law to Achieve Flexibility
by Krista Koehl
PO98-2
Argues that Oregon’s partial forfeiture defense based on the water user’s capability of handling the entire water right is a step in the wrong direction away from certainty and best use of Oregon’s scarce resource.
This work appeared originally in 28 Envt’l L. 1140 (1998).

Water for National Forests, the Bypass Flow Report, and the Great Divide in Western Water
by Michael C. Blumm and Janet C. Neuman
PO98-3
Takes issue with a recent federal task force report which concluded that there is no authority to protect streamflows in national forests through land use conditions and suggests that the report is symptomatic of failure to attempt to accommodate both instream and diversionary uses of Western water.
This work appeared originally in 18 Standford Envt’l L.J. 3 (1999).

Saving Snake River Water and Salmon Simultaneously: The Biological, Economic, and Legal Case for Breaching the Lower Snake River Dams, Lowering John Day Reservoir, and Restoring Natural River Flows
by Michael C. Blumm, Daniel J. Rohlf, and three co-authors
PO98-4
Argues that breaching the four lower Snake River dams and lowering John Day Reservoir will simultaneously save Snake River salmon and water. The study provides a comprehensive review of the major scientific and economic studies addressing this option and a thorough analysis of the legal imperative to restore salmon.
This work appeared originally in 28 Envt’l L. 997 (1998).

Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use
by Janet C. Neuman
PO98-5
A critique of the Beneficial Use Doctrine as implemented by legislatures, administrative agencies, and courts in the Western states, and the doctrine’s inability to promote efficiency in western water use.
This work appeared originally in 28 Envt’l L. 919 (1998).

The Effect of ESA Listings on the Operation of FERC-Licensed Projects: The Hell’s Canyon Example and Beyond*
by James M. Lynch
PO98-6
An examination of FERC’s obligations under the ESA in light of the discretion it retains in the project’s license.

Report and Process Recommendations, Water Use Efficiency Study
by Pam Wiley
PO98-7
Report based on interviews with irrigators, conservationists and other stakeholders at a Water Project workshop in southern Oregon; recommendations for making water use more efficient.

Policy Papers 1997

Maintaining the Status Quo: Protecting Established Water Uses in the Pacific Northwest, Despite the Rules of Prior Appropriation
by Reed D. Benson
PO97-1
An examination of state accommodation of status quo water uses as the overarching principle of Northwest water policy.
This work appeared originally in 28 Envt’l L. 881 (1998).

One Hell of a Grand Idea: Applying the Lessons of the Grand Canyon Experiment to FERC’s Relicensing of the Hells Canyon Complex
by Jack K. Sterne
PO97-2
An analysis of the legal and policy issues involved in the relicensing of the Hells Canyon complex in Idaho and an examination of potential lessons from the Grand Canyon Experiment.
This work appeared originally in 28 Envt’l L. 1055 (1998).

Policy Papers 1996

Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794
by Michael C. Blumm, Harrison C. Dunning & Scott W. Reed
PO96-1
Analysis of the Idaho legislative attempt to eliminate the application of the public trust doctrine to water rights in the state.
This work appeared originally in 24 Ecology Law Quarterly 461 (1997).

The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach
by Michael C. Blumm and Brett M. Swift
PO96-2
An examination of the underpinnings of the treaty fishing right to habitat protection, concluding that, in return for the roughly 64 million acres of land the tribes ceded to the federal government, the treaties reserved a property right to harvest fish.
This work appeared originally in 69 Univ. Colorado L. Rev. 407 (1998).

Policy Papers 1995

Counting Raindrops: Prospects for Northwest Adjudications
by Dar Crammond
PO95-1
Examination of state water rights adjudications in the Pacific Northwest.

Water for Growing Communities: Refining Tradition in the Pacific Northwest
by Janis Carpenter
PO95-2
Analysis of major problems and innovative solutions to municipal water supply demands in the Columbia River Basin.
This work appeared originally in 27 Envt’l L. 127 (1997).

Instream Rights and Invisible Hands: Prospects for Private Instream Rights in the Northwest
by Jack K. Sterne
PO95-3
A study of the ability of private individuals and organizations to hold instream rights.
This work appeared originally in 27 Envt’l L. 203 (1997).

The Columbia Treaty and Basin: Canadian Perspectives in the 1990s
by Nigel D. Bankes
PO95-4
Review of current issues involved in U.S.-Canada Columbia River Treaty negotiations.

Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the mid-1990s
by Michael C. Blumm, Michael A. Schoessler, and Christopher Beckwith
PO95-6
Examination of the forces that have moved the Pacific Northwest beyond the directives of the Northwest Power Act in attempts to restore Columbia Basin salmon runs, including a comparison of restoration plans developed under the Power Act, the Endangered Species Act, and the region’s Indian tribes.
This work appeared originally in 27 Envt’l L. 21 (1997).

A Survey of Columbia River Basin Water Law Institutions and Policies
(Caution: This is a large file, approximately 1.2 megabytes.)
by Janet C. Neuman, Michael A. Schoessler, Scott B.Yates, and Angus Duncan
PO95-7
A comprehensive study of the federal, state and regional institutions that affect Columbia River Basin management. The study provides an overview of the “Law of the River” of the Columbia Basin and clarifies the existing authority and responsibilities of relevant agencies. In addition, the study includes a critique and evaluation of the existing structure and proposes a recommended governance structure that sets forth key principles for reform.
Also available is a compendium of legal documents (treaties, statutes, agreements, etc.) that govern the Columbia River. The study and compendium cost $25.00 each

Wasting Water in the Northwest: Eliminating Waste as a Way to Restore Streamflows
by Karen Russell
PO95-8
Analysis of the concept of “beneficial use without waste,” and failure to enforce this fundamental requirement.
This work appeared originally in 27 Envt’l L. 151 (1997).

Policy Papers 1994

The Columbia River and the Economy of the Pacific Northwest
by ECONorthwest
PO94-1
Analysis of the system of incentives and subsidies governing water and energy use in the Columbia River Basin.

Leasing Water Rights for Instream Flow Uses: A Survey of Water Transfer Policy, Practices, and Problems in the Pacific Northwest
by Dar Crammond
PO94-2
Analysis of opportunities for leasing water rights for instream flows.
This work appeared originally in 26 Envt’l L. 225 (1996).

Enforcement of Instream Water Rights
by Janis E. Carpenter
PO94-3
Analysis of legal tools available for administering and enforcing instream water rights in Oregon, Washington, Idaho, and Montana.

A Watershed Issue: The Role of Streamflow Protection in Northwest River Basin Management
by Reed Benson
PO94-5
Analysis of the relationship between state-based watershed planning and water availability in specific basins.
This work appeared originally in 26 Envt’l L. 175 (1996).

Screening Water Diversions for Fish Protection: A Survey of Policy, Practices, and Compliance in the Pacific Northwest
by James D. Crammond
PO94-6
Discusses damages caused by unscreened surface water diversion and dam juvenile fish and how greater incentives and enforcement are needed to complete screening in the Columbia Basin.
This work appeared originally in 2 Animal L. 101 (1996).

Mono Lake and the Evolving Public Trust in Western Water
by Michael C. Blumm and Thea Schwartz
PO94-7
Analysis of the public trust doctrine in western water law, and review of the Mono Lake case and its aftermath.
This work appeared originally in 37 Arizona L. Rev. 701 (1995).

The Hanford Reach: Protecting the Columbia’s Last Safe Haven for Salmon*
by Shauna Whidden
PO94-8
Analysis of the legal and policy issues surrounding disposition of federal lands in the Hanford area.
This work appeared originally in 26 Envt’l L. 265 (1996).

Drafting an Overdrawn Account: Continuing Water Diversions From the Mainstem Columbia and Snake Rivers
by Joy Ellis
PO94-9
Examination of Washington, Oregon, and Idaho’s moratoria on water diversions from the mainstem Columbia and Snake Rivers.
This work appeared originally in 26 Envt’l L. 299 (1996).

Relicensing the Northwest: A Study of the Condit Hydroelectric Project*
by Chris Watson
PO94-10
Study of the Federal Energy Regulatory Commission’s relicensing process for the Condit Hydroelectric Project on the White Salmon River.

 

* Written by a Northwestern School of Law student.